Vision Films, Inc. v. Does 1-10

Filing 5

MEMORANDUM AND ORDER: SEE ORDER FOR COMPLETE AND FULL DETAILS.IT IS HEREBY ORDERED that Plaintiff=s motion for leave to take discovery prior to the Rule 26(f) conference is GRANTED. (Doc. No. 3.).....IT IS FURTHER ORDERED that any infor mation ultimately disclosed to Plaintiff in response to a Rule 45 subpoena may be used by Plaintiff solely for the purpose of protecting, investigating, and resolving Plaintiff=s rights as set forth in its complaint. (Response to Court due by 7/24/2013.) Signed by District Judge Audrey G. Fleissig on 3/1/2013. (KSM)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

VISION FILMS, INC.,
Plaintiff,
vs.
DOES 1-10,
Defendants.

)
)
)
)
)
)
)
)
)

Case No. 4:13CV00290 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the motion of Plaintiff Vision Films, Inc.,
(AVision Films@) for leave to take discovery prior to the Rule 16 scheduling conference in
this case. For the reasons set forth below, the motion shall be granted.
Vision Films claims that Defendants Does 1-10 illegally downloaded and uploaded
a motion picture copyrighted by Plaintiff, in violation of the federal Copyright Act of 1976,
17 U.S.C. '' 101, et seq. According to Plaintiff, this was done over the Internet by a
data-sharing Aswarm,@ allowing others around the country to download the movie from the
swarm.
Plaintiff seeks leave to serve discovery upon two third-party Internet Service
Providers (AISPs@) to determine the true identity of the 10 Doe Defendants. Plaintiff
argues that without this discovery they cannot identify Defendants, and would be unable to
pursue their lawsuit to protect their copyrighted work from infringement. Plaintiff has
identified Defendants by a unique Internet Protocol (AIP@) address assigned to each
Defendant on the date and time of the alleged infringing activity. Plaintiff indicates two

ISPs that provided Internet access to Defendants: CenturyTel Internet Holdings and
Fidelity Communication International. According to Plaintiff, these ISPs are able to
match an IP address to a particular subscriber by reviewing its subscriber activity logs, and
these logs are typically retained by the ISP for a limited period of time. Therefore,
Plaintiff seeks immediate discovery before the information is permanently destroyed.
Plaintiff has submitted a proposed protective order that includes a time line for the
discovery of Defendants= identities, including deadlines for Rule 45 subpoenas and any
motions regarding those subpoenas.
Expedited discover can be granted when the party seeking discovery establishes
good cause, i.e., that the need for expedited discovery, in consideration of the
administration of justice, outweighs prejudice to a responding party. See, e.g., Semitool,
Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). Here, Plaintiff
has demonstrated good cause because it shows potential irreparable harm from
infringement, no prejudice to Defendants, and limited availability of the information
sought. See Arista Records, L.L.C. v. Does 1-54, No. 4:08-CV-1289 (CEJ), 2008 WL
4104563, at *1 (E.D. Mo. Aug. 29, 2008). The disclosure of the information sought by
Plaintiff is consistent with the ISPs= obligations under the Cable Service Privacy Act, 47
U.S.C. ' 551(c)(2)(B).
Accordingly,
IT IS HEREBY ORDERED that Plaintiff=s motion for leave to take discovery
prior to the Rule 26(f) conference is GRANTED. (Doc. No. 3.)

- 2 -

IT IS FURTHER ORDERED that, pursuant to the terms of the protective order
proposed by Plaintiff and herein adopted by the Court, Plaintiff may immediately serve
Rule 45 subpoenas on the ISPs listed in Exhibit A to the Complaint to obtain information to
identify Does 1-10, specifically his or her name, address, MAC address, and email address.
The subpoenas shall have a copy of this Memorandum and Order attached.
IT IS FURTHER ORDERED that the ISPs will have 60 days from the date of
service of the Rule 45 subpoena upon them to serve Does 1-10 with a copy of the subpoena
and a copy of this Memorandum and Order. The ISPs may serve Does 1-10 using any
reasonable means, including written notice sent to his or her last known address,
transmitted either by first-class mail or via overnight service.
IT IS FURTHER ORDERED that Does 1-10 shall have 60 days from the date of
service of the Rule 45 subpoena and this Memorandum and Order upon him or her to file
any motions with this Court contesting the subpoena (including a motion to quash or
modify the subpoena), as well as any request to litigate the subpoena anonymously.
Should any Doe file a motion to quash, motion for protective order, motion to dismiss,
motion to sever, or similarly styled motion seeking similar relief, that specific Doe=s
information will be withheld from Plaintiff until after the Court rules on that Doe=s motion.
IT IS FURTHER ORDERED that all other information requested by the
subpoena at issue (e.g., contact information for any non-moving Does) can be produced by
the ISPs to Plaintiff. The ISPs may not turn over Defendants= identifying information to
Plaintiff before the expiration of this 60-day period. Additionally, if a Defendant or ISP
files a motion to quash the subpoena, the ISPs may not turn over the moving Doe=s
- 3 -

information to Plaintiff until the issues have been addressed and the Court issues an order
instructing the ISPs to resume in turning over the requested discovery.
IT IS FURTHER ORDERED that the subpoenaed ISPs shall preserve any
subpoenaed information pending the resolution of any timely-filed motion to quash or
other similarly styled motion.
IT IS FURTHER ORDERED that if the 60-day period lapses without a Doe
Defendant or ISP contesting the subpoena, the ISPs shall have 10 days to produce the
information responsive to the subpoena to Plaintiff. A Defendant who moves to quash or
modify the subpoena, or to proceed anonymously, shall at the same time as his or her filing
also notify his or her ISP so that the ISP is on notice not to release that Defendant=s contact
information to Plaintiff until the Court rules on any such motions.
IT IS FURTHER ORDERED that, to maximize judicial efficiency, the Court will
delay ruling on all Doe motions to quash, motions for protective order, motions to dismiss,
motions to sever, or similarly styled motions seeking similar relief filed until all such
motions have been filed.
IT IS FURTHER ORDERED that Plaintiff will file a single opposition to all
motions to quash, motions for protective order, motions to dismiss, motions to sever, or
similarly styled motions seeking similar relief filed. Plaintiff=s opposition is due July 10,
2013.
IT IS FURTHER ORDERED that any Doe who has filed a motion to quash,
motion for protective order, motion to dismiss, motion to sever, or similarly styled motion
seeking similar relief, if he or she so chooses, can file a reply by July 24, 2013.
- 4 -

IT IS FURTHER ORDERED that an ISP that receives a subpoena pursuant to this
Memorandum and Order shall confer with Plaintiff and shall not assess any charge in
advance of providing the information requested in the subpoena. An ISP that receives a
subpoena and elects to charge for the costs of production shall provide a billing summary
and cost report to Plaintiff.
IT IS FURTHER ORDERED that any information ultimately disclosed to
Plaintiff in response to a Rule 45 subpoena may be used by Plaintiff solely for the purpose
of protecting, investigating, and resolving Plaintiff=s rights as set forth in its complaint.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 1st day of March, 2013.

- 5 -